Davis v. Jarnigan

• Decision Date: 29 March 1933
• Docket Number: No. 1072.,1072.
• Citation: 59 S.W.2d 281
• Parties: DAVIS v. JARNIGAN et al.
• Court: Texas Court of Appeals

59 S.W.2d 281

DAVIS v. JARNIGAN et al.

No. 1072.

Court of Civil Appeals of Texas. Eastland.

March 29, 1933.

Rehearing Denied April 7, 1933.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Action by G. S. Jarnigan and another against G. F. Davis, who filed a cross-action. From a judgment for plaintiffs in part, defendant appeals.

Affirmed.

J. D. Barker, of Cisco, for appellant.

Stinson, Hair, Brooks & Duke, of Abilene, for appellees.

LESLIE, Justice.

G. S. Jarnigan and H. Feagan sued G. F. Davis, a road contractor, for moneys alleged to be owing to them by him for road work under subcontracts. They sued for $2,291.87 road work in Jones county, $912.19 road work in Wise and Parker counties, $500 attorney's fees, and $2,500 damages alleged to have been sustained by them in that Davis caused them to move their teams and road-working equipment from Jones to Parker and Wise counties before the right of way was procured, thus delaying their work and damaging them in said amount.

The defendant answered by general denial, plea of settlement, and in cross-action sought to recover against the plaintiffs on their promissory note in the sum of $2,191.87, alleged to have been executed and delivered to him in settlement of their accounts.

By a verified supplemental petition the plaintiffs denied the allegations of the defendant's answer and specially alleged that the note for $2,191.87 was left with the defendant for a special purpose, and that it did not represent any unconditional obligation. In this respect they alleged that a dispute arose between them and the defendant concerning the alleged indebtedness by one to the other; that they were unable to agree on such matters; that the defendant had possession of their teams and road-construction equipment and refused to surrender them to plaintiffs; that they had entered into a contract to grade and excavate roads in Brown county, and had agreed to begin the work at a specified time, and were unable to gain possession of their teams and equipment; that, in order to release them, they executed the note in question and left it with the defendant under a separate and contemporaneous agreement and understanding that if the state engineer's estimates (not then at hand) later disclosed that the defendant owed him (as they contended) that the defendant should pay same and return the note, and that, on the other hand, if such estimates disclosed that the plaintiffs owed the defendant, they would pay the same, and be entitled to the return of the note. That is, the note passed into the hands of Davis for the special purpose to obtain the release of teams, etc., and to be held pending definite ascertainment of status of accounts between the parties.

Such, we think, is the reasonable construction of the plaintiffs' pleading, which, in that respect, is as follows:

"Plaintiffs allege and say in answer to defendant's answer set out in Paragraphs 8 and 9, wherein the defendant alleges that plaintiffs executed and delivered to said defendant one certain promissory note in the sum of $2191.87, is not due and owing by these plaintiffs to said defendant, all of which was well known to said defendant at the time said note was executed by these plaintiffs and that said note was executed and delivered to said defendant herein under the following circumstances:

"That these plaintiffs under said contract and agreement of putting up the road in Wise and Parker Counties, Texas, to perform the work and complete the road in accordance with said contract and agreement and after these plaintiffs had finished and completed said work and road that the said defendant would permit them to complete, and after the state engineer had in all things approved and confirmed their work these said plaintiffs had obtained another contract for the putting up of another road in Brown County, Texas, which was well known to the defendant, and that they proceeded to have a settlement with said defendant on all their work done and performed in Jones, Parker and Wise Counties, Texas, and the said defendant contended at said time that these plaintiffs were due and owing the said defendant sums of money, which they did not owe, and that these plaintiffs at said time desired to move all of their teams and tools from Wise and Parker County, Texas, to Brown County, Texas, and the said defendant objected and refused to permit these plaintiffs to move their teams and tools from Wise and Parker Counties, Texas, from the job which they had completed for said defendant, and told these plaintiffs that unless they did execute to the defendant the note herein mentioned and set out that they could not move their teams and tools. That at said time these plaintiffs, acting herein by H. Feagin, steadfastly insisted with the defendant that he did not owe him anything and that when the final estimates came in from the building of Parker and Wise Counties, Texas, as well as the Jones County job, it would show that he, the defendant was due and owing these plaintiffs sums of money in excess of the amount claimed by the defendant that the said plaintiffs owed the said defendant. But notwithstanding the statements of said Feagin to the said defendant contended and persisted that unless the said plaintiff would execute said note set out and mentioned in the defendant's said answer the said plaintiffs could not move their teams and tools and that he would keep the same until said note was executed by the said plaintiffs.

"The said plaintiffs herein informed the said Davis, defendant herein, that they had contracted to put up some road in Brown County, Texas, and that unless said teams and tools were released and they got on the job that they would lose large sums of money and would forfeit their contract and agreement with the parties in Brown County, Texas, and these plaintiffs say that said statements were true and all of which were known to be true by the said defendant herein, but the said defendant continued to insist that he would not under any circumstances let the said plaintiffs move said teams and tools until said note was signed and the said defendant herein promised and agreed with the plaintiffs herein that if they would execute the note for $2191.87 set out and described in the defendant's said answer herein, that when the final estimate was had for the work done on the Jones, Wise and Parker Counties jobs, if it was then determined that the said plaintiffs did not owe the said defendant anything that he would cancel the note and return it to these plaintiffs and would pay them any balance that was due and owing them under their said original contracts and that these plaintiffs, under said circumstances and agreements, made, executed and delivered said note for said sum of $2191.87, and after the execution and delivery of said note, the final estimates were had on the Jones County job as set out and alleged in plaintiffs' petition, and it was determined that the said defendant herein was due and owing these plaintiffs a balance of $2291.95.

"That after the execution and delivery of said note by the plaintiffs herein to the defendant final estimates were had on the Wise and Parker County jobs, as set out in plaintiffs' petition, and that there was due the plaintiffs for said Wise and Parker County jobs the sum of $5119.37, as set out in plaintiffs' petition and that the said plaintiffs then and often thereafter insisted with the said defendant to have a settlement of all of their work done and labor performed in keeping with their original contract and agreement but the said defendant failed and refused to do so and failed and refused to cancel and return the plaintiffs' said note in the sum of $2191.87, and that in the execution and delivery of said note, as hereinbefore mentioned and set out in the sum of $2191.87, there was no consideration moving between the parties and that the consideration for which said note was executed has wholly failed and that there is a total failure and lack of consideration for the execution and delivery of said note in the sum of $2191.87, all of which the said defendant had due notice."

Trial was before the court and jury, and in response to the issues the jury found: (1) That at the date of the execution and delivery of the note for $2,191.87, a bona fide dispute existed between plaintiffs and defendant as to any balance due by plaintiffs to defendant; (2) that at time of execution of the note plaintiffs and defendant did not agree that the former owed the latter $2,191.87; (3) that plaintiffs and defendant, at said date, did not have accounts stated between them of respective claims listed in pleadings; (4) that plaintiffs excavated and moved 55,240 cubic yards of dirt for defendant on the Jones county job; (5) that plaintiffs did for defendant 182½ hours of blading on said road; (6) plaintiffs were not overpaid by defendant for the Jones county work; (7) plaintiffs did not agree that bills paid by defendant to one Carlton were proper charges against them; (8) that defendant Davis owed plaintiffs a balance of $1,311.14 on the Jones county job; (9) he owed them no balance on the Parker and Wise county work; (10) that plaintiffs were damaged $440 by defendant's failure to obtain right of way in Parker county before moving them to that place; (11) that plaintiffs sustained no loss in moving teams, etc., from one point to another in Parker county.

Based on this verdict the court entered a judgment in favor of plaintiffs against the defendant for the sum of $1,311.14, and otherwise, in accordance with the verdict, except as to the item of $440, as to which judgment was rendered in favor of the defendant.

Proposition 1 complains that the court erred in admitting testimony to the effect that the plaintiffs were damaged by the defendant's moving them to Parker and Wise counties before the right of way was procured, thereby causing them unnecessary expense and delay....